by Nicholas Barber
On June 20, 2017, Brian Gisclair appeared in the courtroom of New Orleans Magistrate Judge Harry Cantrell on a single, nonviolent misdemeanor charge of possession of drugs. About four months prior to his arrest, Gisclair, thirty-three years old at the time, had been laid off from work. The sporadic temp jobs he was able to find in the aftermath were hardly enough to support him or his three children, of whom he has shared custody. Yet Mr. Gisclair had a job interview scheduled for the day after his arrest. With all this in mind, his appointed public defender requested that he be released without bail. Judge Cantrell’s response: “We don’t go lower than $2,500 in this Court.”
At first glance, Judge Cantrell’s intransigence fits a few of the common narratives of mass incarceration; say, for example, the money bail system’s criminalization of poverty, or simply the carceral state’s excessively punitive whims. Yet the decision to set bail at no lower than $2,500, no matter the circumstance, has everything to do with a different (albeit deeply related) story: Louisiana’s Court-Industrial Complex. At work in Judge Cantrell’s courtroom is a form of carceral plunder, akin to Ferguson. Gisclair, then, is a tragic, yet unremarkable victim of an elaborate scheme of public and private extraction.
Judge Cantrell’s bail policy is just the most transparent manifestation of Louisiana’s extreme form of carceral capitalism. Indeed, Cantrell doesn’t just set indiscriminately high bail to guarantee jail time for indigent defendants, he ensures that the poor who pass through his courtroom sustain the system itself. Money bail, as it was originally conceived, was meant as a form of collateral, a way of ensuring that an accused (but not convicted) defendant returns to court. Yet here is where Cantrell has shown his hand: he does not accept cash bail payments, refunded at the conclusion of the case; he only accepts surety bonds through a private, commercial bail bondsman, of which he and the other New Orleans’ judges get a cut. The surety bond, usually 12-13 percent of the full bail amount (i.e. $1500), is non-refundable: the proceeds fuel one of the biggest power players in Louisiana politics, the commercial bail-bonds industry. The $6.4 million industry, often accused of kidnapping and extortion tactics to collect fees while systematically overcharging defendants, is so powerful that it was able to get an ordinance passed in the New Orleans city council: no commercial bondsman can charge less than 12 percent of the full bond amount, ensuring that no bondsman can undercut his competition. Carceral capitalism in New Orleans, it would seem, has insulated itself from any market influence that would reduce the burden on defendants.
Carceral capitalism in New Orleans has insulated itself from any market influence that would reduce the burden on defendants.
Yet it is not just commercial interests that benefit. The system was constructed so that everyone has a stake in its maintenance and expansion: 1.8 percent of each bond payment goes directly to the court’s general fund, which alone accounts for twenty-five percent of the court’s operating budget. In other words, bond payments amount to more than $1 million per year of funding for the courts that set them. An astounding 97 percent of those released on bail in New Orleans did so through a commercial surety. Cantrell and his fellow judges could just as easily set a cash bail at the commercial surety rate instead of going through bail bondsmen. Yet this would make it nearly impossible for the court to continue to operate as it does. In fact, no cog in the system could function without these surety bond payments, because everyone gets a cut. Judges get the largest slice, but district attorneys and sheriffs also rely on these fees for operational expenses. Even the public defenders, those tasked with arguing for a lower bond setting, get a cut. The very concept of a conflict of interest seems inadequate to describe the everyday injustice of New Orleans’ and Louisiana’s courts.
Bail payments are just the tip of the iceberg. Fines and fees of every kind, shape, and variety populate each phase of the criminal justice process: defendants are expected to pay an “application fee” to the public defenders’ office; a bevy of fines assessed upon conviction; “court costs,” to defray the expenses of court procedure; fines into a “transcript fund,” for transcripts of court proceedings. Some fees are paid into a notorious “Judicial Expense Fund,” which has been used for free cars for judges and improperly extravagant health benefits (for more, see this scathing auditor’s report). The list goes on and on.
The very concept of a conflict of interest seems inadequate to describe the everyday injustice of New Orleans’ and Louisiana’s courts.
Poor defendants are expected to fund the basic operations of court, in what has been called a regressive taxation scheme. According to a study of New Orleans’ courts by the Vera Institute, the average non-felony defendant, like Gisclair, pays an average of $460 in fines and fees. That does not include bail, probation, or parole fees. In Orleans Parish in 2015, the courts received 52 percent of all fines and fees collected from defendants. This amounted to 18 percent of the Municipal Court budget, 32 percent of the Criminal District Court budget, and 99 percent of the Traffic Court budget. As Louisiana Supreme Court Justice Bernette Johnson recently asked, “Would you have faith in the system if you knew that every single actor in the criminal system—including the judges, the district attorneys, the court-appointed lawyers—everybody relied upon a steady stream of guilty pleas and verdicts to fund the office?”
Extraction, as a primary means of sustaining Louisiana’s often overburdened courts, has been in the system’s DNA for over a half-century. As Louisiana embarked on a punishment binge that would produce the highest incarceration rate in the country, it saw the poor, black population passing through its courts as a source of much needed revenue. As early as the 1960s, city officials were searching for ways to finance their newly-expanding court apparatus. As one New Orleans city official wrote to Mayor Victor Schiro in 1966, “Judge Bucaro has been talking to Al Liska, City Attorney, about definitely going about getting this money for the City. Judge Bucaro ventured a guess that there is minimum of between one-quarter to one-half million dollars in unforfeited bonds… City could pick up this money then for badly needed services.” Fifty years before Judge Cantrell refused to lower Brian Gisclair’s bond, Judge Bucaro, and the city of New Orleans, were looking to do the exact same thing: generate city revenue through carceral plunder. Yet the city’s priorities in 1966 and beyond were crystal clear: while the city extracted resources from the poor for “much needed services” in the Court, the majority-black Lower Ninth Ward went that entire year without a working fire station.
When prison reform is not understood through the lens of capitalism, inequality, the debt economy, and structural racism, then the possibility of justice becomes that much more remote.
In the aftermath of the 2008 financial collapse, (which was followed by almost a decade of austerity under former Louisiana Governor Bobby Jindal), a question still remains: Will Louisiana’s expansive prison system survive the state’s financial crisis? And, if it does, how will it adapt?
The current budget woes in Louisiana have made both conservatives and liberals alike reluctant to bear the costs of housing almost 40,000 prisoners. It was in this context that a reform movement gained steam in the past few years, the aptly-titled “Justice Reinvestment.” The package of criminal justice reform bills passed the Louisiana legislature in June 2017, just before Gisclair appeared in Cantrell’s courtroom. The bills were aimed at reducing the state’s prison population by ten percent over ten years, a notable redirection for a state that has the highest incarceration rate in the country. This achievement for many activists on the ground should not be overlooked. Yet this reinvestment package mostly ignored the fines and fees mechanism at the heart of Louisiana’s courts.
The current nationwide prison reformist moment is often highlighted by the alignment of odd bedfellows: the Koch brothers, Grover Norquist, and Newt Gingrich, along with President Obama, the ACLU, and the NAACP, all fighting for some version of “prison reform.” This, too, was the case in Louisiana’s bipartisan Justice Reinvestment movement. Yet as prison abolitionists and prison historians like Ruth Gilmore warn us, superficial overlaps in viewpoints do not yield a unified structural analysis for action. When prison reform is not understood through the lens of capitalism, inequality, the debt economy, and structural racism, then the possibility of justice becomes that much more remote.
As one judge remarked when asked about his decision to assess discretionary fines on an indigent criminal defendant—one like Gisclair: “the Court’s gotta eat.” This ideology, one that forms the bedrock of Louisiana criminal justice, will continue to sustain mass incarceration and municipal plunder despite the best efforts of reformers on the ground unless these carceral mechanisms themselves are undone. Until then, the Court will continue to “eat” the poor.
Nicholas Barber graduated with Highest Honors in History from Harvard in 2017. His thesis, entitled “‘The Court’s Gotta Eat’: Indigent Defense and the Rise of Mass Incarceration in Louisiana from Gideon to Katrina,” won the Thomas T. Hoopes prize for outstanding scholarly work in any field and the Kathryn Ann Huggins prize for most outstanding thesis relating to African American history. He has worked at the Orleans Public Defenders, and on the Louisiana Campaign for Equal Justice, both of which informed the questions and analyses of his research. Barber begins a new job with the Southern Center for Human Rights in August, an organization committed to ending unjust and inhumane practices in Southern criminal justice. From New York City originally, he’s become a card-carrying member of a long list of Yankees fascinated with the South.
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